MacDonald et al. v. MacDonald et al., 2003 NSSC 8
Judge | Moir, J. |
Court | Supreme Court of Nova Scotia (Canada) |
Case Date | July 22, 2002 |
Jurisdiction | Nova Scotia |
Citations | 2003 NSSC 8;(2003), 212 N.S.R.(2d) 1 (SC) |
MacDonald v. MacDonald (2003), 212 N.S.R.(2d) 1 (SC);
665 A.P.R. 1
MLB headnote and full text
Temp. Cite: [2003] N.S.R.(2d) TBEd. FE.036
Darrell MacDonald, Sonia MacDonald and Clarine (Renee) MacDonald, of Ingonish Beach, County of Victoria, Province of Nova Scotia (plaintiffs) v. Eric MacDonald and Madonna MacDonald of Ingonish Beach, County of Victoria, Province of Nova Scotia (defendants)
(SN 113692; 2003 NSSC 8)
Indexed As: MacDonald et al. v. MacDonald et al.
Nova Scotia Supreme Court
Moir, J.
January 15, 2003.
Summary:
The plaintiffs were three of the four children of Clayton MacDonald. The defendants were his son and daughter-in-law. In October 1984, Clayton executed a deed in the defendants' favour conveying to them his home and land. The defendants built a home on a portion of the land. Clayton and the plaintiffs continued to reside in the homestead. The defendants wanted to sell the property. The plaintiffs claimed that the deed was subject to a trust or collateral agreement.
The Nova Scotia Supreme Court granted the plaintiffs a declaratory judgment setting out the parties' respective interests in the land.
Evidence - Topic 1183
Relevant facts - Relevance and materiality - Res gestae - Accompanying acts or statements - General - Three siblings sued a fourth sibling (Eric) and his wife for a declaration that a deed conveyed to Eric by his late father was subject to a trust or collateral agreement - The plaintiffs offered evidence of a discussion said to have taken place shortly before the deed was executed in which the father is said to have expressed and Eric is said to have accepted stipulations for subdivision and reconveyance of part of the land - Eric argued that this evidence constituted hearsay - The Nova Scotia Supreme Court admitted the evidence of the discussion both as an act or declaration of a party before making a conveyance - It was also admissible as a verbal act in distinction from hearsay, that was as "words which, when spoken, effect a legal result" and "as original evidence of the very fact in issue" - See paragraphs 3 and 4.
Evidence - Topic 1555
Hearsay rule - Exceptions - Statements against proprietary interest - [See Evidence - Topic 1183 ].
Sale of Land - Topic 1326
The contract - Necessity for writing - General - Statute of Frauds - Circumstances not within statute - [See Trusts - Topic 326 ].
Sale of Land - Topic 1329
The contract - Necessity for writing - General - Statute of Frauds - Effect of fraud by person pleading statute - [See Trusts - Topic 326 ].
Trusts - Topic 326
Creation of trust - Methods of creation - By agreement - To devise - Three siblings sued a fourth sibling (Eric) and his wife for a declaration that a deed conveyed to Eric by his late father in 1984 was subject to a trust or collateral agreement - The Nova Scotia Supreme Court held that Eric received a deed to the homestead property based on an unwritten trust for his benefit and for that of his brother and sisters - He agreed with his father to convey half the lot to his brother, reserving life estates to his sisters - His retention of the whole was axiomatically a fraud - For years, Eric left his brother and sisters in possession of the lower half of the property including the homestead - He sought no rent and asserted no other right in reference to the part he was to have conveyed to his brother - Section 5(5) of the Statute of Frauds (N.S.), which required a written declaration or creation of trust in land, did not prevent enforcement of the unwritten trust in this case - See paragraphs 2 to 14.
Cases Noticed:
Fleet v. Farrell (1985), 71 N.S.R.(2d) 124; 171 A.P.R. 124 (C.A.), refd to. [para. 4].
Rochefoucauld v. Boustead, [1897] 1 Ch. 196 (C.A.), refd to. [para. 11].
Deglman v. Guaranty Trust Co. of Canada et al., [1954] 3 D.L.R. 785 (S.C.C.), folld. [para. 13].
Bollivar v. Hirtle Estate (1989), 93 N.S.R.(2d) 279; 242 A.P.R. 279 (Prob. Ct.), refd to. [para. 13].
Authors and Works Noticed:
Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (2nd Ed. 1999), paras. 6.215, 6.216 [para. 4].
Waters, D.W.M., The Law of Trusts in Canada (2nd Ed. 1984), pp. 208 to 215 [para. 11].
Counsel:
Alan J. Stanwick and Gerald X. MacKenzie, for the plaintiffs;
Hugh R. McLeod, for the defendants.
This action was heard at Sydney, N.S., on June 24-26, 2002 and last submissions on July 22, 2002, before Moir, J., of the Nova Scotia Supreme Court, who released the following decision on January 15, 2003.
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Sources of Rights
...Morris v Whiting (1913), 15 DLR 254 at 257–58 (Man KB); Beemer v Brownridge , [1934] 1 WWR 545 at 556 (Sask CA); MacDonald v MacDonald , 2003 NSSC 8. 77 MacDonald v MacDonald , ibid at para 11, Moir J. See also Law Reform Commission of British Columbia, Report on the Statute of Frauds, part......
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Table of Cases
...63 MacArthur v Hastings (1905), 15 Man R 500 (QB) ................................... 253, 254 MacDonald v MacDonald, 2003 NSSC 8 ............................................................ 189 MacIntyre v Spierenburg (1979), 41 NSR (2d) 584, 76 APR 584 (SC) ............... 215 Mackenzie v......
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Nagel's Debt Review Inc. v. Mosiuk, 2019 SKCA 16
...for a trust in the case law: McNeil v Corbett (1906), 39 SCR 608; Beemer v Brownridge, [1934] 1 WWR 545 (Sask CA); Macdonald v Macdonald, 2003 NSSC 8, 212 NSR (2d) 1 [Macdonald]; Palkowski v Ivancic, 2006 CanLII 28103 (Ont Sup Ct J) (aff’d 2008 ONCA 419); Samad v Samad (2008), 69 RPR (4th) ......
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Nagel's Debt Review Inc. v. Mosiuk, 2019 SKCA 16
...for a trust in the case law: McNeil v Corbett (1906), 39 SCR 608; Beemer v Brownridge, [1934] 1 WWR 545 (Sask CA); Macdonald v Macdonald, 2003 NSSC 8, 212 NSR (2d) 1 [Macdonald]; Palkowski v Ivancic, 2006 CanLII 28103 (Ont Sup Ct J) (aff’d 2008 ONCA 419); Samad v Samad (2008), 69 RPR (4th) ......
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Sources of Rights
...Morris v Whiting (1913), 15 DLR 254 at 257–58 (Man KB); Beemer v Brownridge , [1934] 1 WWR 545 at 556 (Sask CA); MacDonald v MacDonald , 2003 NSSC 8. 77 MacDonald v MacDonald , ibid at para 11, Moir J. See also Law Reform Commission of British Columbia, Report on the Statute of Frauds, part......
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Table of Cases
...63 MacArthur v Hastings (1905), 15 Man R 500 (QB) ................................... 253, 254 MacDonald v MacDonald, 2003 NSSC 8 ............................................................ 189 MacIntyre v Spierenburg (1979), 41 NSR (2d) 584, 76 APR 584 (SC) ............... 215 Mackenzie v......